Hubert H. Humphrey, III, Attorney General, Paul R. Kempainen, Assistant Attorney General, Lisa M. Weagant, certified student attorney, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, 151 Fourth St. SE, Rochester, MN 55904 (for Respondent)

Stephen M. Warner, Special Assistant State Public Defender, Melissa Sheridan, Assistant State Public Defender, 875 Summit Ave., LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.[*]

Appellant, convicted of first-degree burglary and second-degree criminal sexual conduct, challenges the sufficiency of the evidence to support his first-degree burglary conviction and the use of Spreigl evidence. We affirm.

Both H.B. and Prince identified appellant in a police photographic showing. At trial, H.B. identified appellant as her assailant and the person who fled; Prince also identified appellant as the person who fled. Appellant, his mother, and his aunt all testified that he was eating dinner and watching movies at his mother's home that night. Over defense objection, the district court allowed evidence of appellant's 1992 conviction for second-degree criminal sexual conduct; the evidence was in the form of a statement stipulated to by the parties. The district court gave cautionary instructions on Spreigl evidence both when the stipulation was read and as part of its final instructions. The district court sentenced appellant to concurrent 98-month terms.

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, commits burglary in the first degree * * * if:

* * * *

(c) the burglar assaults a person within the building or on the building's appurtenant property.

Minn. Stat. § 609.582, subd. 1(c) (1996) (emphasis added). The legislature amended the burglary statute in 1988 by adding the emphasized language thereby in appropriate cases no longer requiring the state to prove the element of wrongful intent upon nonconsensual entry of a building. See 1988 Minn. Laws ch. 712, § 9. The phrase "enters a building without consent" means either "to enter a building" or "to remain within a building" without consent. Minn. Stat. § 609.581, subd. 4(a), (c) (1996).

Appellant argues that the state failed to prove that he entered the victim's apartment without consent or that he remained in the victim's apartment after she withdrew consent. Due process requires that the state prove all elements of a crime beyond a reasonable doubt. State v. Merrill, 428 N.W.2d 361, 366 (Minn. 1988). In a challenge to the sufficiency of the evidence, our review

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citing State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980)).

A review of the record shows that the state met its burden of proving that appellant entered the victim's apartment without her consent. At trial, H.B. testified that she rented the upstairs apartment of a house. She testified that on the night of the incident the door at the bottom of the staircase by which entry was gained was unlocked and she did not know if it was open or closed. She testified that she heard appellant knocking on the staircase wall as he walked up the stairs. She went to the top of the stairs, and appellant asked if she remembered him. She recognized appellant as a party guest at her apartment in March, although appellant eventually had been asked to leave the party. She returned to her couch and appellant followed and sat down next to her. H.B. testified on direct as follows:

Q When you two sat down in the living room on the couch, were you okay with that at that point?

A I was nervous, but at that point I really didn't, you know, it didn't matter to me if he was there or not.

The state concedes that, at this point, H.B. did not explicitly tell appellant to leave.

Nevertheless, even though the victim made no oral objection to appellant's presence in her living room, she had not consented to his entry into her apartment. In State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981), the supreme court affirmed a conviction for first-degree burglary where the defendant entered the victim's residence without consent and was met inside by one of the victim's sons. Although the son thought that the defendant was there to talk to his brother, the defendant instead went to the victim's bedroom and committed a sexual assault. Id. The supreme court concluded that the evidence was sufficient to show that the entry was without consent and accompanied with the intent to commit a crime once inside the residence. Id.

In the instant case, when the evidence is viewed in a light most favorable to the conviction, it is sufficient to show that appellant entered without consent. We have already noted that in a case such as this involving an assault following unauthorized entry, the state is no longer required to prove wrongful intent at the time of entry. We conclude that the state proved each element of first-degree burglary beyond a reasonable doubt.

2. Appellant argues that the district court abused its discretion in allowing the state to use Spreigl evidence to show identity and that the admission of Spreigl evidence was not harmless beyond a reasonable doubt.

Minn. R. Evid. 404(b) provides, in relevant part:

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of * * * identity * * *.

Here, appellant's entire defense centered on his alibi. The supreme court has held that

[w]here identity is a crucial issue and an alibi is strongly relied on by the defense, the state has a right to fortify its position with evidence that the crime committed by defendant was a part of a series of similar, related offenses.

State v. Billstrom, 276 Minn. 174, 177-78, 149 N.W.2d 281, 284 (1967) (footnotes omitted); see also State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (citing holding in Billstrom). To admit Spreigl evidence, the district court must find that

(1) the evidence is clear and convincing that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state's case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.

State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991) (citing DeWald, 464 N.W.2d at 503). The district court's decision to admit Spreigl evidence will not be reversed absent an abuse of discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn.1993). On appeal, the defendant has the burden of proving that the district court prejudicially erred in admitting Spreigl evidence. State v. Slowinski, 450 N.W.2d 107, 113 n.1 (Minn. 1990).

Appellant argues that evidence of the prior conviction was irrelevant to the state's case because it lacked factual similarity to the charged offense. See State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995) (Spreigl evidence may be relevant if similar to charged offense in either time, place, or modus operandi). According to appellant, the only similarity is that both incidents involved the sexual assault of a juvenile female in Olmsted County. Moreover, appellant claims that the probative value of the prior conviction was outweighed by its potential for unfair prejudice because the jury could view the prior conviction as evidence of appellant's propensity to commit the charged crime.

In essence, both offenses were "opportunistic" sexual assaults, the former of a vulnerable 11-year-old female and the latter of a 16-year-old female in a "temporarily vulnerable position." See State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987) (noting similar circumstances of charged offense and prior offenses). The fact that the prior offense involved the sexual assault of an 11-year-old girl rather than a woman or sexually mature young woman is insubstantial. See id. (explicitly ignoring this distinction). The district court's cautionary instructions ensured that the jury understood that the Spreigl evidence was received for the limited purpose of establishing identity. See DeWald, 464 N.W.2d at 505 (potential for prejudicial impact from Spreigl evidence lessened by numerous cautionary instructions). We conclude that the district court did not abuse its discretion in admitting evidence of appellant's 1992 conviction for criminal sexual conduct.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.